Welcome to the May 2011 OH&S Newsletter
This month we examine some examples of people not following procedures & we focus on what we know about our OHS risk especially with company OHS perception variation & executive imprisonment for workplace deaths; regulations, vibration and practice; OSH involvement, too busy for safety & sedentary work; fitness for work, SOPS and security threats; and risk minimisation and road deaths………...Enjoy!
Does your organisation cast a critical eye at their OHS Performance?
The CEOS’s role is complex- they have no real choice but to be a glass half full type of person but when this comes to OHS can hearing what you want to hear defeat the purpose? A study last month conducted jointly by the Australian Institute of Management & the Safety Institute of Australia found that the perceptions of OHS between key decisions makers & their OHS personnel were at odds.
CEO/board directors (50%) strongly agreed that OHS culture was well entrenched in their organisations, contrasted by only 18% of OHS personnel and 29%- 32% of employees (in companies over 500). CEO’s (77%) and senior managers (56%) suggested that OHS takes a very high priority in the workplace whilst 38% of OHS personnel agreed with this. Time spent across organisations /week on OHS was most commonly less than half an hour. CEOs’ (66%) considered there was OHS leadership in their organisation whilst only 34% of OHS personnel strongly agreed with this.
As to whether top level management “walks the talk” for OHS, 92% of business owners & 88% of CEO/board directors agreed, whereas only 47% of OHS personnel concurred. Whether management was proactive in responding to OHS issues or reactive (waiting for an incident to occur), 98% of business owners & 93% of CEO/board directors considered management to be proactive, with only 55% of OHS personnel agreeing with this assessment. Whilst 72% of CEO’s strongly agreed that top management demonstrated a commitment to OHS only 32% of OHS and 27% of HR personnel agreed.
Organisations demonstrated their commitment to OHS risk reduction was through induction and training, two of the least effective administrative controls used to minimise risk. Is OHS an area where we are better off to take a glass half empty approach? Perhaps our senior personnel are more involved in the ‘talk or spin’ of OHS rather than the reality. Effective change will not occur until these leaders can get the real information they need to make effective decisions & that does not include being surrounded by a lot of ‘yes’ people!
http://www.aimvic.com.au/survey/safety_survey_v2.pdf
More executive’s to be imprisoned for deaths in European workplaces
Perhaps these executives were out of touch with the OHS risk management in their organisation when making their management decisions. An Italian court has sentenced ThyssenKrupp's CEO in Italy, Harald Espenhahn, to 16.5 years in prison for the murder of seven workers who died in a fire at the multinational's steel factory in Turin on 6 December 2007. The incident prompted a strike, street demonstrations, and a nationwide campaign for workplace safety improvements. In addition to the jailing of Espenhahn, 5 other company officials were convicted on manslaughter charges & sentenced to up to 13.5 years in prison. The German company received a 1 million euro (A$ 1.3 million) fine.
The company was also told by the Turin court it would not be allowed to benefit from Italian state subsidies for 6 months. During the same period, ThyssenKrupp (TK) will also be banned from advertising its products in Italy. At the time of the incident TK was gradually dissolving the factory, with only 200 of the former 400 employees remaining. TK were accused of losing interest in the plant and a failure to maintain health & safety standards. The prosecution's investigation into the incident proved that the CEO was fully aware of the risks & decided not to take the minimum measures required by law at the plant.
The court's ruling, which the company say will be appealed, sets an important precedent in recognising the CEO as responsible for voluntary homicide, a first in Italy for a workplace incident. One worker died immediately in the horrific blaze at the plant, while the other six died later in hospital. The verdict was welcomed by prosecutor Guariniello, who said it would mean a lot for health and safety at the workplace. Labour minister Maurizio Sacconi said the verdict sets a 'relevant precedent'.
OHS regulations creating job losses?
According to new research, regulations designed to protect workers, consumers & the environment do not have a negative impact on the job market &, in some cases, actually drive job creation.
The paper from the US Economic Policy Institute (EPI) shows that recent criticism surrounding regulations' impact on jobs is misguided & not reflective of economic data. The paper claims these fears are overblown concluding that economic studies provide no evidence that regulation impedes job creation or leads to significant unemployment.
The authors found that overall the majority of studies across various industries suggest that regulations have had a close to neutral effect or a moderately positive effect on employment levels. The report says since 2007, US government data on extended mass job layoffs indicate that only a very tiny fraction of such job layoffs (about 0.3% of the 1.5 million such layoffs each year) were attributed by employers to government regulations /intervention. By comparison, extreme weather-related events have caused more extended mass job layoffs than government regulation, according to the data reviewed in the paper. The authors found 'under-regulation' played a role in the BP Deepwater Horizon oil spill disaster & its aftermath, which, in addition to its environmental & human toll, continues to have a significant negative impact on the Gulf region's economy & job market. The paper notes that regulations have generally & consistently struck a reasonable balance, with their benefits to health, safety, & well-being far exceeding their costs.
The authors found that debates over regulations have often relied on exaggerated estimates of the compliance costs they will produce. The paper concluded that overall, the picture that emerges is a positive one. For decades, regulations have generally & consistently struck a reasonable balance, with their benefits to health, safety, & well-being far exceeding their costs. This author is certainly not for regulating everything and anything but anyone who disagrees with this sentiment should perhaps go to see ‘The Inside Job” a film documenting the effects on Global Financial markets of the deregulation of the US financial system.
Hand-arm vibration affects Land Rover employees
Land Rover has been prosecuted by the Health and Safety Executive (HSE) for failing to take into account the risks facing workers using vibrating hand tools. Ten workers at its Solihull plant are believed to have developed a vibration related occupational disease as a result. Land Rover pleaded guilty and was fined £20,000 (A$30 431) and ordered to pay £60,606 (A$92 214) for the criminal breaches.
The firm was prosecuted after an HSE investigation in 2007 into the working practices used by two employees in the weld destruct section, where air chisels were used to undo welds on cars to test their strength. Two cases of Hand Arm Vibration Syndrome (HAVS) had been reported in December 2006.
The subsequent HSE investigation found vibrating hand tools were being used across the plant with a lack of assessment and management of risk. When a health surveillance regime was made effective, other cases came to light. The court also heard there was no system in place to measure how long each employee was using the tools or the levels of vibration. The recommended amount of time for one of the tools to be used was 1 hr/day/person, but this tool had been in use for 2 hrs/day. In all, 10 employees are thought to be affected by vibration related ill-health at this plant. HSE inspector Langston reminded all of the importance of managing this risk as overexposure to HAV can create a disabling condition involving pain and significant loss of hand function, and is usually irreversible in later stages. Do you know how long your employees are exposed to HAV for?
Solid OHS Management system doesn’t mean safety management is solid in practice!
Qld WHS audited 11 major construction projects in the last quarter of 2010. They found in desktop assessments of OHSMs that only 2 projects had deficiencies but all implemented systems to ensure workers were informed of safety issues through consultative arrangements & induction processes. When it came to the actual practices for the complete installation & maintenance of edge protection systems, work at height was identified as a major non-compliance area.
However, onsite assessments identified a number of non-compliance issues, with one in four related to the risks of falling objects or falls from height. More than one in five involved both mobile & static plant related safety issues, including traffic management, & 16% related to housekeeping & material storage. Risks associated with access to & from the workplace & electricity were also identified. WHS urged principal contractors to ensure:
- adequate edge protection & screening systems are installed & maintained (at all project stages) to protect workers from falls, as well as workers & the public from falling objects;
- pedestrian pathways, thoroughfares, material storage, waste handling & traffic movement are carefully planned to prevent slips, trips & falls & vehicle-related injuries;
- static & mobile plant is regularly inspected & maintained; &
- temporary & permanent electrical power supplies are properly installed and maintained.
We all, including government have to be active in the OHS management process
The grounding of a vessel off the coast of Gladstone with a lack of visual cues in the water & the need for piloting not identified in this particular area, reminded Australia’s shipping regulator of this fact. At 1705 on 3 April 2010, the Chinese registered bulk carrier Shen Neng 1 grounded on Douglas Shoal, about 50 miles north of the entrance to the port of Gladstone, Queensland. The ship's hull was seriously damaged by the grounding, with the engine room & six water ballast & fuel oil tanks being breached, resulting in a small amount of pollution. The ATSB investigation found that the grounding occurred because the chief mate did not alter the ship's course at the designated course alteration position. His monitoring of the ship's position was ineffective & his actions were affected by fatigue.
The ATSB identified 4 safety issues during the investigation: there was no effective fatigue management system in place to ensure that the bridge watch keepers were fit to stand a navigational watch after they had supervised the loading of a cargo of coal; there was insufficient guidance in the proper use of passage plans (including electronic route plans), in the ship's safety management system; there were no visual cues to warn either the chief mate or the seaman on lookout duty, as to the underwater dangers directly ahead of the ship; &, at the time of the grounding, the protections afforded by the requirement for compulsory pilotage & active monitoring of ships were not in place in the sea area off Gladstone. The ATSB has issued two safety recommendations to Shen Neng 1's management company regarding the safety issues associated with fatigue management & passage planning & acknowledges the safety action taken by the Australian Maritime Safety Authority in relation to the visual cues and the extension of compulsory pilot coverage to include the waters off Gladstone.
Too busy for safety?
Are you too busy to sign off on your OHS planning? A NSW employer that failed to complete an OHS management plan, because it’s OHS & production managers were too busy, has been fined $160,000, after the OHS manager was killed in an incident involving an unsafe forklift. In July 2008 a Brick & Block Company Pty Ltd employee was using the forklift to move a two-tonne, L-shaped concrete panel in a storage area when he ran over a pile of raw material, causing the forklift to rock & the panel to topple from the tines. The OHS manager, who was standing nearby, was struck & trapped by the falling panel, & sustained fatal injuries. The employer was charged with failing to ensure the health &safety of employees.
In the Industrial Court, Justice Backman heard that several months prior to the incident the employer directed the OHS manager & the production manager to review the safe work method statements section of its OHS management plan, which was underdevelopment. Due to the work commitments of both men, however, the review was not completed at the time of the incident. A consequence of this was that the employer did not undertake a risk assessment of the actual task performed for moving the L-shaped panels in the storage area. This lack a formalised risk or hazard assessment meant that no consideration was given to the adequacy or appropriateness of the use of the forklift to undertake the task.
It was found that the forklift had a lifting capacity of 1670kg, which was about 350kg below the weight of the concrete panel. It was found that the forklift driver had believed the lifting capacity was 2500kg. He had had also neglected to conduct any pre-checks on the vehicle before using it to move the panel. The vehicle's compliance plate was in a state of disrepair, making it illegible. The forklift's tines were defective, with the tips bent down and out of alignment, and that its solid tyres were unsuitable for the uneven terrain of the storage area. If the forklift had been examined it may have been decided to not use it for the task and to use a mobile crane with sufficient lifting capacity which was what was used to lift the panels onto a truck.
Inspector Michael Duncan v Brick & Block Company Pty Limited [2011]NSWIRComm 49
Sedentary work and cancer link
A University of WA study has found a link between sedentary work and colon cancer. The study of nearly 2000 cancer sufferers and controls found that participants who had spent more than 10 years in sedentary work had nearly twice the risk of distal colon cancer as those who rarely sat down in their employment. They also had a 44% increased risk of rectal cancer. Researchers found that this association was independent of recreational physical activity and was seen even among the most recreationally active participants.
A US study however has found that study has found that sedentary workers who have access to exercise machines are likely to use them, reducing their risk of disease. Researchers found that 18 workers in sedentary occupations used a pedal exercise machine (located in the workplace) on at least 12 of the 20 days it was available, and for more than 20 minutes/session. Researchers have found that sedentary time is independently associated with an increased risk of metabolic disease with worksite interventions designed to decrease sedentary time may serve to improve employee health. How many are sedentary at your workplace - what could you do to change this?
Boyle, T et al: Long-Term Sedentary Work and the Risk of Subsite-specific Colorectal Cancer. Am J Epid, 173 (10)May 2011. Carr, L et al: Feasibility of a portable pedal exercise machine for reducing sedentary time in the workplace., Br J Sports Med, doi:10.1136/bjsm.2010.079574.
How well do you enforce your fit for work procedures?
This case provides a good lesson for a SA employer who failed to prevent a worker on restricted duties & affected by alcohol from performing a risky task has been fined $26 250, after the worker was nearly killed. The Magistrates Court found the employer's "person in control" had been drinking with the worker on the night before the incident, and dropped him at work the following morning. On 24 November 2007 the worker, who was employed as a diver on a vessel operated from Arno Bay by Clean Seas Aquaculture Growout Pty Ltd, was unable due to a knee injury to perform his usual duties, and was instructed to act as coxswain. When he arrived at the wharf, however, other employees noticed he was affected by alcohol, and he was sent to sleep in the boat's cabin.
Later that day, when the boat was out at sea, the worker decided to check whether the crew had properly inspected a set of fish cages, and despite being told not to do so jumped into the cold water wearing only shorts and a mask and flippers. After several breath hold dives he passed out while underwater. He was rescued and resuscitated, and has since suffered from post-traumatic stress disorder. Clean Seas was charged with and pleaded guilty to a breach of failing to provide a safe working environment.
Before the Industrial Magistrate, the employer argued that it was proactive in OHS issues, and prohibited divers from consuming drugs or alcohol in the 12 hours prior to a shift. It said the worker had probably blacked out as a result of the alcohol in his system and (because he wasn't wearing the required wetsuit) the temperature of the water, and that his "bizarre behaviour" was not indicative of a workplace-wide disregard for safety. The employer conceded, however, that through the actions of the person in control, who was usually second-in-charge at Clean Seas' Arno Bay operations, but was filling in for the absent site manager, it had failed to adequately enforce its policies and procedures. It also conceded that the worker should not have been allowed on the boat.
The Industrial Magistrate found the person in control had exposed the worker and others to the risk of injury, and that crews should have been explicitly instructed not to head out to sea when an employee was obviously intoxicated. He also found the employer had failed to conduct a risk assessment on breath-hold diving or on inspecting and repairing the fish cages.
Symons v Clean Seas Aquaculture Growout Pty Ltd [2011] SAIRC 17
SOPs do really need to reflect effective risk management not just what we do!
This case is another good reason why safe operating procedures need to be developed from risk assessments. In January 2007 a Fig Tree Fisheries Pty Ltd crew was retrieving a fishing net when the deckhand in charge of "spreading the net" noticed part of it was tangled. As he stepped forward to shake the net, one of his boots became caught in it. He called to the skipper, who was not only controlling the net, but also steering the vessel, to stop the winch. By the time the skipper reacted, the worker had been slammed against the spreader bar & suffered a broken hip.
The employer was charged with failing to ensure the worker operating the spool maintained a line of site with the worker who spread the net, & stopped it if his view became obstructed. In fining the employer $22,500 the Industrial Magistrate noted the employer's safe operating procedure was directed at deckhands. The SOP really should have been directed at the operator of the spool as the only person capable of controlling it in a safe manner. After the incident, the employer purchased video cameras to improve the spool operator's view of the reel & installed an automatic spreader. It also agreed to pay the worker, who has since undergone one hip replacement & will likely need two more in the future, $20,000 in compensation.
Hillman v Fig Tree Fisheries Pty Ltd & Anor [2011] SAIRC 16 (14 April 2011)
Do you prepare staff for security threats when understaffed & understand the compo liability?
On a Saturday night in January 2009 the Red Rooster Foods Pty Ltd assistant trainee manager & a 16-yearold female colleague were forced to operate a fast food store alone, after up to 3 other staff members failed to turn up to work & the store manager could not be contacted. The worker was subsequently abused by a drunken customer because of the slow service. The customer left the store, but returned shortly after, punching a window & threatening to kill the worker. The worker threatened to call the police, & the customer retreated to the store's forecourt & stood beside the entrance. The worker followed him & demanded he leave the area, at which time a fight broke out & both the worker & customer were
injured.
The worker was later charged with assault, & dismissed by his employer for breaching its Employee Behaviour Standards. The worker claimed compensation for his wrist injury, but the employer denied liability. The employer argued that the worker's injury arose from "serious & wilful misconduct", in that he had been physically & verbally aggressive towards a customer, & had failed to press a panic button, call the police & lock the front door when the problem arose. The court found that the altercation was "clearly" linked to the worker's employment, in that staff had been instructed to tell unruly customers to leave, & said that much of the employer's case was based on hindsight. Referring to CCTV footage the court found the customer was "clearly the aggressor", & the worker was entitled to compensation for 13 weeks of incapacity as he was acting in self-defence.
Risk minimisation measure must match the likelihood!
A Queensland judge has ruled that employers must not adopt a "narrow" view of the hazards they are obliged to address, in upholding a $70 000 fine issued after a teenage gymnast's death. The judge rejected a gym owner's claim that the 19-year-old's "unconventional" technique created a risk it could not be expected to control.
In June 2009, the gymnast was practising on a tumble track at a Townsville Gymnastic Association Inc (TGA) gym. She successfully completed one routine, and landed safely on crash mats at the end of the track. When she attempted to "rebound" straight into another routine, the momentum carried her to the edge of the mats and her head hit an exposed section of concrete floor, causing fatal injuries. TGA was charged with failing to ensure her safety, and pleaded not guilty.
In October 2010 proceedings, TGA said the tumble track had been used without incident for more than 14 years, & claimed the flooring did not constitute a hazard because gymnasts completing routines would not enter the uncovered area unless they rebounded. The gymnast's decision to rebound from one routine to another was "contrary to training and contrary to practice", and created a risk TGA could not control.
The Industrial Magistrate found that while TGA could not control the gymnast's actions in "reaching the point where her head was in the vicinity of the concrete floor", it was within their control to prevent contact with the floor by, for example, placing a scatter mat there. The discharge of TGA’s obligation to address the tumble track hazard does not eliminate their obligation to address the hazard associated with the concrete floor. TGA appealed.
In the Industrial Court proceedings at hand, President Hall agreed the gymnast's voluntary & "unconventional" attempt to rebound "was her undoing", but said the fact TGA did not identify the risk posed by the uncovered floor remained a "fundamental difficulty". He found that while the employer had consulted with other gymnastic bodies on safety, it offered no documented proof that a risk assessment had been conducted. The appeal was dismissed.
Townsville Gymnastics Association Inc and Dean Allan Coggins [2011] QIRComm 69
How do we stop road deaths?
Each year nearly 1.3 million people die as a result of a road traffic collision, more than 3000 deaths each day, and more than half of these people are not travelling in a car," said the Global Plan for the Decade of Action for Road Safety 2011-2020” released by the United Nations this month. How is it that we can’t stop this needless number? What do you do at your workplace that is effective at reducing this risk?
If the risk is low then the courts expect control measures that reflect that.
This Queensland case where a court has reversed a decision to award $500,000 to a lone worker who was assaulted by an elderly customer, after finding her employer was entitled to regard the risk as low and therefore had been diligent in their risk management process. In 2005 the Clarity Optometrists technician was adjusting an elderly customer's spectacles in a back room when he snuck up behind her and began groping her. The worker fled to the front of the shop and the customer left. She was later diagnosed with chronic post-traumatic stress disorder and major depression, and sought damages.
In September 2010 proceedings, Supreme Court Justice Atkinson found the employer had instructed the worker to lock the front door & call the police if she feared for her safety, but had not given "any other consideration to the personal security" of lone workers. She said the employer could have installed a lockable door to protect staff when they were in the back room, or an infra-red beam to alert them to intruders. In failing to take such precautions, it had breached its duty of care, she found. The employer appealed.
Before Court of Appeal Justices Muir, Wilson and Lyons, the employer claimed its liability had been assessed with "an inappropriate and impermissible use of the benefit of hindsight". Insufficient regard was given to the very low risk of an assault when considering the expense, difficulty and inconvenience of installing various security measures, it said. Only a small amount of cash was stored on the premises, and neither the employer nor the previous practice owner had ever received any complaints from staff about their personal safety, the employer said. It also contended a lockable door or infra-red beam might not have prevented the attack. The worker was unlikely to have gone to the trouble of locking a door when the offender seemed like a "perfectly respectable man", and she would already be in danger by the time a beam detected an intruder, it said.
Justice Muir accepted there were difficulties with "all of the solutions put forward" by Justice Atkinson. She seemed to place undue emphasis on the circumstances of the case instead of what could be expected of a reasonable employer prior to the incident. It was accepted that the risk of assault, while remote, was foreseeable, but said "the magnitude of the risk & its degree of probability" also warranted consideration. The employer was entitled to regard the risk & its likelihood as low & so the appeal was upheld. Do you use the same risk controls for your low and high risks? How much of a risk are lone workers in your workplace at? Would your staff know what to do?
Lusk & Anor v Sapwell [2011] QCA 59
Written by Julie Armour